Sarullo v State of New York

[*1] Sarullo v State of New York 2008 NY Slip Op 52497(U) [21 Misc 3d 1144(A)] Decided on November 21, 2008 Ct Cl Fitzpatrick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2008
Ct Cl

Joseph Sarullo, As Administrator of the Estate of KEVIN SARULLO, Deceased, Claimant,

against

State of New York, Defendant.



106296



APPEARANCES:For Claimant:

FINKELSTEIN & PARTNERS, LLP

By: Michael T. McGarry, Esquire

For Defendant:

ANDREW M. CUOMO

Attorney General of the State of New York

By: G. Lawrence Dillon, Esquire

Assistant Attorney General

Diane L. Fitzpatrick, J.

In a previous trial on the issue of liability, the Court found that the State was liable for 85% of the damages suffered by Claimant as a result of the death of his son, Kevin,[FN1] who was 21 years of age at the time. This Decision will address the issue of damages only.

Claimant, Joseph Sarullo, Decedent's father, was born on November 18, 1946.[FN2] Claimant testified that he and Decedent's mother, Martha Sarullo, had been married almost 40 years at the time of trial and had three children. Decedent was born March 26, 1980, and died on August 31, 2001. Claimant is a bus driver and Mrs. Sarullo had been a school bus driver for 25 years but is now disabled. Decedent had not completed high school at the time of his demise and Claimant was unsure of whether he had completed work on his General Equivalency Diploma (GED). On the day of the accident Decedent was unemployed; however, he expected to begin working the second shift at the Wal-Mart Distribution Center Warehouse the following weekend. At his prior [*2]job, he was earning $10 per hour plus overtime. He had no debts at the time of his death. Claimant taught his son auto mechanics and Decedent also attended BOCES classes on the subject.

Decedent was single with no children, thus his parents are his distributees (see EPTL 4-1.1). He had an older brother and younger sister. Decedent would help his parents around the house with repairs and renovations. A few years before his death, he paid to have the firebox replaced in his parent's furnace when it stopped working during the winter. Claimant recalled it cost about $300 for the replacement. Claimant said he considered the assistance with the firebox and hot water heater a loan which he anticipated repaying; although Decedent did not expect repayment. Claimant did repay a small portion to his son. Decedent also purchased groceries or gave his mother gas money.

Also, when Claimant was in the hospital with a heart problem for approximately two weeks and had no income, Decedent gave grocery money to Mrs. Sarullo to assist with expenses. Decedent also bought and replaced the hot water heater that failed when Claimant was in the hospital. The heater cost $180, and he installed the hot water heater in a couple of hours. He also replaced the radiator in Mrs. Sarullo's automobile; it cost $125 for the part and the labor was about one and one-half hours.

Over the course of two weeks, Decedent helped Claimant rebuild the motor in his van. They worked 20-25 hours per week repairing the van. Decedent would do the heavy lifting which Claimant was unable to do. It saved the cost of a mechanic repairing the car. Decedent also replaced the starter in another car which took about an hour to complete.

Claimant and Mrs. Sarullo were renovating their home. Decedent helped Claimant remodel the kitchen which took approximately a month. Decedent was working at the time but would help 15-20 hours per week. He also helped dig a 200' pipeline from a drilled well to the house. The time it took to complete the pipeline was approximately three weeks. Decedent was planning to help Claimant renovate the foyer and living room which they were about to begin at the time of Decedent's death. Claimant anticipated that Decedent would help remodel the entire house. Claimant had originally obtained a quote for the total renovation project which was $100,000, with labor at $20 per hour. Claimant couldn't afford that so he and Decedent started the work themselves. Claimant testified the downstairs and half of the upstairs would have been finished by the time of trial had his son lived.

Mrs. Sarullo, as a school bus driver, was out of work each summer and was unable to collect unemployment, so Decedent would help financially whenever he could. Weekly he would ask what his parents needed or would give them $40 - $50 in cash when he had it. When Mrs. Sarullo broke her foot, Decedent went to his parents' home and walked the dogs three times a day for her. Decedent also worked on a farm nearby to earn additional income.

Since their son's death, Claimant was without income for 10 days while he was ill. Claimant testified that Decedent would have helped during that time.

Claimant also testified that he paid the ambulance bill and hospital bill related to the accident and death. There was no insurance coverage. The funeral home has not been paid and [*3]that bill has accrued interest and penalties.[FN3]

On cross-examination, Claimant testified that Decedent had been fired from his prior job and was awaiting the results of a drug test before he could begin his employment with Wal-Mart. However, he also said that Decedent had his work schedule and start date at the time of his death.If an extra hand was needed with the house repair, Claimant could call his other son to help but usually didn't because he was busy with his own family. If Decedent was unable to assist his father, Claimant said he would make the repairs himself with the help of others.

At some time in the future, it was anticipated that their son, the Decedent, would marry and not be as available to Claimant and Mrs. Sarullo. Decedent did not want to have children. Although he occasionally mentioned marriage, there were no imminent plans.

Mrs. Sarullo also testified. She basically confirmed what Claimant said about Decedent's assistance around the house and his financial contributions.

Although Decedent was not actually working at the time of his accident, his work history and willingness to work more than one job at a time supports a determination that he would have found employment even if his anticipated employment with Wal-Mart did not materialize.

The purpose of a wrongful death action is to provide a decedent's distributees with "fair and just compensation for the pecuniary injuries resulting from a decedent's death." (EPTL § 5-4.3). Where the beneficiaries of the action are a decedent's parents, the pecuniary injuries include loss of their child's support and services (Parilis v Feinstein, 49 NY2d 984; Franchell v Sims, 73 AD2d 1). "Fair compensation may properly include probable, or even possible, benefits which might inure to the parents from [the decedent's] entire life, taking into consideration the possibility of failure or misfortune." (Hanson v County of Erie, 120 AD2d 135, 137-138). Among the factors for consideration are the decedent's physical status including age, sex, life expectancy, state of health, habits and earning potential, and the relationship of decedent with the beneficiaries and those persons health, age, and circumstances (Franchell, 73 AD2d at 5-6).

From the evidence, Decedent was young, healthy, and close with his parents. He assisted his parents both financially and utilizing the skills that he had, with household and vehicle repairs and renovations. Claimant and his wife have a reasonable expectation that Decedent's contributions would have continued if not for his untimely death (see Parilis, 49 NY2d at 985; Zelizo v Ullah, 2 AD3d 273). Claimant had a life expectancy of 18 years [FN4] and there was no evidence, barring this accident, that Decedent would have predeceased his father.

The Court awards $6,192.70 for the expenses from Decedent's accident, reduced by 15% for Decedent's comparative fault, as follows:

The Court awards $30,000 for contributions Decedent would have made to

Claimant and his wife from Decedent's date of death until the date of the liability Decision. The Court awards $60,000 for future contributions through Claimant's life expectancy. These sums [*4]are reduced by 15% for Decedent's comparative fault to $25,500 and $51,000 respectively.

To recapitulate: 85% of funeral, hospital & ambulance expenses$ 5,263.80 Lost contributions from date of death through date of death through date of the liability Decision$25,500.00 Lost future contributions$51,000.00 Total Damage Award$81,763.80

Interest on past award of $5,263.80 shall run from August 31, 2001 (see Milbrandt v A.P.

Green Refractories, Co., 79 NY2d 26, 34-38). Interest is suspended, pursuant to Court of Claims Act § 19(1), from May 28, 2002 until July 1, 2002.

Interest on $25,500 shall run from September 27, 2004 (a single reasonable intermediate date) (see Id. and CPLR § 5001).

Interest on the loss future contributions of $51,000 shall also run from the date of signing the liability Decision on October 24, 2007 (see Love v State of New York, 78 NY2d 540).

To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2). All motions not hereinbefore decided are now DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Syracuse, New York

November 21, 2008

DIANE L. FITZPATRICK

Judge of the Court of Claims Footnotes

Footnote 1: Decision filed November 29, 2007.

Footnote 2:There was no evidence of Decedent's mother's age.

Footnote 3: The State stipulated to the original amount. Claimants' attorney was going to try to get the interest and penalties waived, however, the Court has not been notified that this occurred.

Footnote 4:Life expectancy tables for men in the United States (1NY PJI 3d, Table 2 at 1635).